HomeMy WebLinkAbout1983-0007.Insanally.83-12-12December 12, 1983
Memorandum:
Re: 7/83 OPSEU (M. Insanally) and Crown/Ontario
(Ministry of Correctional SerViCe.5)
Please attach the enclosed copy of Mr. Cochrane's dissent
to your copy of 7/83 Insanally.
o& legistrar
ch
Enclosure
7/83 OPSEU (M. Insanally) and
Crown/Ontario (Ministry of Correctional Services)
With respect, I must disagree with the majority
decision on this matter. A review of the evidence leads me
to the conclusion that there was no bona fide reason advanced
by the employer to separate Mr. Insanally from his employ-
ment.
The majority decision also has made reference to
bona fide nature of the reasons for separation. In the
concluding paragraph of the decision, it is noted, "We
do not think the Superintendent had valid or proper grounds
for deciding to release the grievor..."
The majority decision at pages 36 & 37 offered the
opinion that, ' . ..the Superintendent knew very well that
there were no grounds whatever for dismissal..."
The Board's jurisdiction in respect of grievances in-
cluding the separation of an employee from his employment
are restricted to these matters raised in section 18(2) of
The Crown Employees Collective Bargaining Act. In this
case, the employer is asserting that Mr. Insanally has not
been "disciplined or dismissed or suspended from his em-
ployment without just cause..." The employer asserts that
what has occurred is a "release" under section 22(5) of
the Public Service Act of Mr. Insanally for failure to
meet the requirements of his position." Since the em-
ployer has chosen to characterize the separation as a
"release", the employer asserts that the Board is without
jurisdiction to deal with the matter. I do not agree with
this assertion.
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While the Jacmain decision did not deal with the same
legislation, there is a basic principle suggested by the
Federal Court that cannot be ignored by boards required to
deal with similar jurisdictional matters. In the unanimous
judgment of the Court of Appeal delivered by Heald J., the
Court looked at the duty of an administrative tribunal
faced with a challenge to its jurisdiction. He concluded
that the tribunal must take a position as to its juris-
diction and could only do so after it has heard evidence
with regard thereto. It would appear that the extent of
the evidence to be lead would not only include the "form"
but the "substance" of the matter in dispute. In finding
the Jacmain matter to be truly a rejection for cause, Heald J.
looked beyond the mere intention and conduct of the em-
ployer. He fully examined all the evidence adduced before
the adjudicator--including, but not restricted to, the
evidence relating to the employer's letters before he
concluded, 'given the specific facts of this case, that
Mr. Jacmain's conduct is a classic example of behaviour
which would justify a probationer's release. But Mr.
Justice Heald also wondered what the result might be if
the employer were less than honest as to its reasons for
terminating employment. He concluded that "there could
only be disciplinary action camouflaged as rejection in
a case where no valid or bona fide grounds existed for
rejection".
In such cases, it would appear that Heald J. would
be prepared,despite the form of separation adopted by the
employer, to support a finding of disciplinary discharge
during probation.
In probationary cases then, if there is evidence
in form and substance to support the action taken by
the employer to release the employee, the Board would
have no jurisdiction. If, however, the evidence lead does
not support such a finding, then the Board could and should
conclude that there was "disciplinary action camouflaged
as rejection".
In my view, the employer, under our legislation scheme,
would have to establish through cogent evidence:
1. that the action taken to release Mr. Insanally was
initiated under section 22(5) of the Public Service
Act and -
2. that there were reasons for release due to Mr.
Insanally's failure to meet the.requirements of
his position.
If the employer is unsuccessful in establishing either
of these two considerations, the Board could reasonably con-
clude that what in form appeared to be a release action
was in substance a dismissal. It would be wrong to
expect the grievor in cases such as this to produce
cogent evidence that he has misconducted himself when
the whole purpose of his grievance is to the theme that
he hasn't. It would be asking the grievor to prove some-
thing which he asserts never happened.
In Mr. Insanally's case, there was no cogent evidence
adduced to support the release action taken by the em-
ployer. Mr. Dunbar simply had no bona fide reason to
take the action he did. Given the specific fact of this
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case, I would have characterized the release action
as a dismissal without just cause and reinstated the
grievor .
DATED at Toronto, Ontario
this 9th day of December,
1983.
R. Cochrane, Member